92-030

Petitioner appeals from the decision of an impartial hearing officer which upheld the recommendation of respondent's committee on special education (CSE) that petitioner's child be placed in a special education day treatment program of the Board of Cooperative Educational Services of the Third Supervisory District of Suffolk County and the Sagamore Psychiatric Center, a unit of the New York State Office of Mental Hygiene (BOCES- Sagamore) for the 1991-92 school year. The appeal must be sustained in part.

The child, who is now 17 years old, attended kindergarten and first grade in respondent's schools. In a 1981 psychological evaluation of the child, respondent's school psychologist reported that the child was of average intelligence, but had behavior and interpersonal problems. The school psychologist recommended that the child receive counseling to address the child's feelings of "being bad". Petitioner removed the child from public school. The child repeated first grade in a private school, where he remained through seventh grade in the 1988-89 school year. At the hearing, petitioner testified that the child had been successful at the private school, although the child's sixth grade teachers had advised her that the child displayed unusual behavior in school. Petitioner sought assistance for the child from a behavioral counselor and a psychiatrist.

For eighth grade during the 1989-90 school year, the child was enrolled in respondent's Accompsett Intermediate School. In December, 1989, a private neurologist diagnosed the child as having Tourette Syndrome, with associated behaviors including an attention deficit hyperactivity disorder, and an obsessive compulsive disorder. The neurologist also diagnosed the child as having an oppositional defiant disorder of childhood. The neurologist recommended that the child receive medication to control vocal and motor tics, and individual counseling to address the psychiatric disorders associated with Tourette Syndrome. The neurologist further suggested that special education be considered for the child because of his distractibility.

The record reveals that the child received final grades of D in English, mathematics and science and F in social studies for eighth grade. In June, 1990, the child was referred to a school psychologist for an evaluation, because of his academic and social difficulties in eighth grade. On IQ tests, the child was determined to have a verbal IQ of 111, a performance IQ of 101 and a full-scale IQ of 106. The school psychologist opined that the

child probably had greater potential, but that his scores reflected very marked intratest and intertest variability. The school psychologist further opined that a long-standing emotional disturbance had interfered with the child's performance at home and school, and involved ritualistic behaviors and sleep disturbances. However, the school psychologist stated that the child did not require special education.

Upon the school psychologist's recommendation, the child underwent a psychiatric evaluation at the North Shore University Hospital in Manhassett, New York. In August, 1990, a psychiatrist reported that the child was alert and oriented, and had an intact memory, but displayed poor insight and had questionable control over his impulses. The psychiatrist diagnosed the child as having Tourette Syndrome, with an obsessive compulsive disorder, an attention deficit disorder and a moderate oppositional defiant disorder. In addition to medication for symptoms of Tourette Syndrome and the attention deficit disorder, the psychiatrist also recommended that the child receive individual counseling and that his family be involved in family therapy.

For ninth grade during the 1990-91 school year, the child was enrolled in the Smithtown West High School. Although not classified as a child with a handicapping condition, the child was counseled approximately on a weekly basis by a school psychologist. Petitioner testified that the child was hospitalized at the Payne-Whitney Hospital in New York City, in December, 1990, as a result of his reactions to various medications which his then psychiatrist had prescribed. While in the hospital, the child received instruction from the New York City Board of Education. The child's academic records reveal that the child's grades were generally satisfactory in the first marking period, but that his academic performance decreased throughout the remainder of the school year.

On March 1, 1991, petitioner referred the child to the CSE. By letter dated March 28, 1991, the Suffolk County Department of Social Services requested that the CSE evaluate the child and make a recommendation concerning the possible Family Court placement of the child in a child care institution. The Department of Social Services letter referred to the legal authority of the Family Court to place children adjudicated as juvenile delinquents, persons in need of supervision, or requiring protection. The record does not reveal what action, if any, was taken by the Family Court.

A reading evaluation of the child completed in March, 1991 reported that the child had a grade equivalent total reading ability of 11, while the child's passage comprehension was at a 7.8 grade equivalent. The evaluator opined that the child had the ability to process information with a high degree of accuracy, and recommended that the child not be classified. Another evaluator reported that the child was capable of passing the Regents Competency Test in Writing. On an evaluation of the child's mathematical skills, the child had an overall grade equivalent of 6.3, with relative weaknesses in all areas and an extremely limited understanding of operations using fractions.

In a March, 1991, psychological evaluation, the child achieved IQ test results comparable to those obtained in the June, 1990 psychological evaluation. The school psychologist reported that the child expressed the belief that he was misunderstood and unappreciated, and the school psychologist recommended that the child and his family receive psychotherapy. However, the school psychologist opined that the child did not meet the criteria for classification as a child with a handicapping condition.

The child was found to have good receptive and expressive skills, in a speech/language evaluation. The child's physician reported that the child had no health problems, apart from Tourette Syndrome, and an anxiety disorder, which impacted upon his educational performance.

By letter dated May 1, 1991, the child's psychiatrist advised the CSE that the child had a long history of tic symptoms and had shown oppositional and hyperactive behavior. The psychiatrist opined that the child's behavior was affecting his school work, and referred to the child's inability or reluctance to awaken on time for school and to concentrate when in school. The psychiatrist further opined that the child was unable to function in his present educational setting, and required a residential placement.

A building level child study team recommended that the child not be classified as disabled. However, on May 7, 1991, the CSE recommended that the child be classified as multiply handicapped (other health impaired and emotionally disturbed). The CSE also recommended that the child receive one period per day of special education instruction in mathematics and one period per day of resource room services, as well as individual social work services one period per week.

On May 8, 1991, petitioner asked the CSE to immediately implement its recommendation, but asserted that the child needed more special education services. Petitioner asked the CSE to recommend that the child be placed in the BOCES-Sagamore day treatment program, which had been discussed at the May 7, 1991 CSE meeting. By letter dated May 21, 1991, petitioner reiterated her request. On May 28, 1991, respondent approved the CSE's May 7, 1991 recommendation.

The CSE obtained reports from the child's teachers about his fourth quarter performance. The child was described by his special education teacher as having performed well in special education mathematics, including passing the Math 9 Regents Competency Test. The teacher reported to the CSE that the child was almost always prepared for class, and was beginning to become more social. The child's regular education teachers reported that the child had achieved mixed success, including fourth quarter grades of B in English, C in Science and D in Social Studies. Some of the teachers expressed concern about the child's absences from school and his lessened effort in their classes. The CSE also received a brief letter, dated August 9, 1991, from the child's physician, who opined that the child would benefit educationally from placement in a different environment.

On August 13, 1991, the CSE reconvened at petitioner's request. After discussing the BOCES-Sagamore program, as well as possible residential placements, the CSE recommended that the child attend the BOCES-Sagamore program for the 1991-92 school year, where he was to be enrolled in a special class of no more than six children with a teacher and an aide, with psychological services. The CSE chairperson testified at the hearing that the BOCES had not been contacted about the child's admission to the BOCES-Sagamore program, prior to the CSE's recommendation that he attend such program. After its meeting of August 13, the CSE sent information about the child to the BOCES, which arranged for an admission screening interview to be held on October 1, 1991. In the interim, the child continued to attend respondent's West High School. Petitioner and a representative of the CSE were advised by the BOCES at the screening interview that the child would be admitted to the BOCES-Sagamore program.

By letter dated October 8, 1991, petitioner advised the CSE chairperson that she did not wish to pursue the option of placement in the BOCES-Sagamore program because the child had been placed by the Suffolk County Department of Social Services in the Summit School, which is a child care institution under Article 81 of the Education Law and a residential school approved to serve emotionally disturbed children.

By letter dated December 20, 1991, petitioner asked for an impartial hearing to review the CSE's recommendation. A hearing was held on February 25, 1992, and concluded on March 13, 1992. In a decision dated May 29, 1992, the hearing officer accepted petitioner's contention that the classification of multiply handicapped was inappropriate, and directed the CSE to consider the use of other health impaired as an appropriate classification. The hearing officer upheld the CSE's recommendation that the child attend the BOCES-Sagamore program, and rejected petitioner's unilateral placement of the child in a residential school as too restrictive. However, the hearing officer directed the CSE to obtain more specific information about the abilities and needs of the children in the BOCES-Sagamore program, in the event petitioner chose to return the child to public school.

Petitioner raises a procedural issue which I will address before considering the substantive issues. Shortly after petitioner served her notice of intention to seek review, she received a letter from respondent's former attorney, who stated that the respondent would not file the record with the State Education Department until petitioner served her petition. State regulation requires that within 10 days after receipt of a notice of intention to seek review, a board of education must file the record of the hearing and a copy of the hearing officer's decision with the State Education Department (8 NYCRR 279.7[b]). Petitioner requests that I order respondent to direct its hearing officers to file the record with the Education Department in all future reviews, upon respondent's receipt of notices of intention to seek review. Given the clarity of the regulation and this singular aberration by respondent, I conclude that there is no present need for such a direction. However, I admonish respondent to comply with the clear requirements of 8 NYCRR 279.7(b).

One other preliminary matter requires consideration. At the hearing, respondent raised the issue of petitioner's standing to seek review of the CSE's recommendation, because of the assumption of financial responsibility for the child by the Suffolk County Department of Social Services, which placed the child at the Summit School. The care and/or custody of a child may be transferred to a local Department of Social Services under various terms and conditions (Section 384-a of the Social Service Law). Petitioner's assertions that the child has continued to come home from the Summit School and that she is involved in his education at the school are unrebuted, nor does the record reveal any other basis for presuming that petitioner has surrendered custody of the child. On these facts, I find that petitioner has standing to challenge the CSE's recommendation (John H. v. McDonald, 558 EHLR 366 [USDC, D.NH, 1987]; Appeal of a Parent of a Child with an Alleged Handicapping Condition, 27 Ed. Dept. Rep. 120.).

Petitioner challenges the CSE's classification of the child as multiply handicapped. However, the hearing officer annulled that classification and directed the CSE to consider the classification of other health impaired. Although respondent has not cross-appealed from the hearing officer's decision, it has asserted in its answer that the child's classification as multiply handicapped was correct. On this record, I find that the child should be classified as other health impaired, a classification which includes children with Tourette Syndrome (8 NYCRR 200.1[ee][10]), and which affords an adequate basis for providing the child's educational program. The CSE erred in classifying the child as multiply handicapped. A multiply handicapped child is defined by State regulation as a child:

"... with two or more handicapping conditions that result in multisensory or motor deficiencies and developmental lags in the cognitive, affective or psychomotor areas, the combination of which cause educational problems that cannot be accommodated in a special education program solely for one of the impairments."

The record reveals no basis to conclude that the child has a motor or sensory deficit. Therefore, the classification of multiply handicapped is inappropriate.

Although petitioner also challenges the appropriateness of the May 7, 1991 CSE recommendation, that recommendation has been superseded by the August 13, 1991 CSE recommendation. With regard to the latter recommendation, petitioner asserts that the child's IEP is deficient because it does not specify the related services to be provided. State regulation requires that a child's IEP list the amount of time per day a child will receive related services (8 NYCRR 200.4[c][2][v]). The child's IEP provides that the child shall receive psychological services "As provided by the BOCES III-Sagamore program". Although a day treatment program is a hybrid program involving educational and treatment components, State regulation provides that the CSE shall consider the recommendations of the treatment team as to the type, frequency and duration of services, in preparing a child's IEP (8 NYCRR 200.14 [d][1]). I find that the child's IEP is deficient because it does not specify the amount of psychological services to be provided to the child.

Petitioner further asserts that the IEP is deficient in failing to provide for objective goals and evaluation criteria. A child's IEP must list annual goals that are consistent with the child's needs and abilities, as well as short-term instructional objectives and evaluative criteria to be followed during the period covered by the IEP (8 NYCRR 200.4[c][2][iii]). The child's IEP annual goals are general and broad, eg. the child will pass general and special education classes, will improve self-concept and self-control. Although the short-term instructional objectives are more specific, I find that the child's IEP does not adequately describe specific annual goals (Application of a Child with a Handicapping Condition, Appeal No. 92-3). The evaluation criteria set forth in the child's IEP are listed as "Teacher and staff evaluation". I further find that this description is too vague to be meaningful. I have considered petitioner's additional assertion that the child's IEP should have described the methods and techniques to be used for the child to attain his goals, but there is no specific regulatory requirement for such details in an IEP.

Petitioner challenges the BOCES-Sagamore program as inadequate to meet the child's needs. Respondent has the burden of establishing the appropriateness of the program which it has recommended for a child (Matter of a Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 90-5). To meet its burden, respondent must demonstrate that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176), and that the recommended program or placement is the least restrictive environment for the child (34 CFR 300.550[b]; 8 NYCRR 200.6[a][1]).

Although the deficiencies found in the child's IEP do not require a finding that the proposed day treatment program was inappropriate (Application of a Child with a Handicapping Condition, Appeal No. 92-27), I must nevertheless find that respondent has not met its burden of proof. The CSE did not discharge its responsibility to recommend an appropriate program. The CSE did not consult with the BOCES-Sagamore program staff about the child's admission to the program, nor did it forward the child's records to BOCES-Sagamore for screening, until after the CSE made its recommendation. The CSE could not determine whether the BOCES-Sagamore program which it recommended could be implemented. When a CSE makes a recommendation for program or placement, it must also prepare an IEP (8 NYCRR 200.4[c]). State regulation requires that the suggestions of the day treatment team be used by a CSE in preparing an IEP of a child who is to attend a day treatment program (8 NYCRR 200.14[d][1]). The CSE did not comply with this regulatory requirement.

I further find that respondent has failed to demonstrate that the BOCES-Sagamore program was the least restrictive environment for the child. An assistant principal of the BOCES-Sagamore program testified at the hearing that the program is located on the second floor of a school building in respondent's district, and that the children in the program attend classes within the area assigned to the program. Children in the program are either classified as disabled for educational purposes or are diagnosed as having a medical condition requiring treatment by the Sagamore staff. Although the assistant principal testified that children who are successful in the program may re-enter the regular education program through a transitional program also operated by BOCES-Sagamore, this child's IEP provides for a full-time special education program. However, there is no basis in the record to support a full-time special education program for a child who has adequate academic achievement in a regular education program. The record provides no evidence that supplementary aids and services have been used to support the child in a regular education setting. The provision of such aides and services is considered a precondition to the child's removal from regular education (34 CFR 300.550[b][2]).

Petitioner's request for an order directing respondent to reimburse her for tuition expenditures for the child's attendance at the Summit School during the 1991-92 school year must be denied, notwithstanding respondent's failure to establish that it had offered an appropriate program for that school year. Petitioner's right to tuition reimbursement is contingent upon a showing that the CSE's recommendation is inappropriate, the placement selected by petitioner is appropriate, and equitable considerations support the claim for reimbursement (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359; Matter of Northeast CSD v. Sobol et al, 170 AD 2nd 80). Although petitioner has satisfied the first element of the Burlington criteria, I find that the placement selected by petitioner is not appropriate because it is not the least restrictive environment. Even unilateral placements by parents are subject to the requirement of least restrictive environment (P.J. v. State of Connecticut, 18 IDELR 1010 [US DC, D.Conn. 1992]; Application of a Child with a Handicapping Condition, Appeal No. 92-7).

Under Federal and State law, a residential placement is appropriate only if such placement is required in order for the child to benefit from the child's educational program (Abrahamson v. Hershman, 701 F. 2d 223 [1st Cir.,1983]; Burke County Bd. of Ed. v. Denton, 895 F. 2d 973 [4th Cir., 1990]; Application of a Child with a Handicapping Condition, Appeal No. 92-27). Upon careful consideration of the entire record, including the testimony by petitioner's expert witness, I am constrained to find that there is no educational basis for a residential placement. The record discloses little, if any, manifestation of the child's Tourette Syndrome while he attended respondent's schools. Although the child clearly requires academic support, including some special education, the record demonstrates that he can benefit from regular instruction during the normal school day.

Finally, petitioner asserts that the child was placed in the Summit School by the Suffolk County Department of Social Services. Section 4004 (2) of the New York State Education Law provides that the tuition expenses for the educational program of a child placed in a child care institution by a social services district shall be borne by the social services district. The school district in which the child resided at the time a social services district assumed responsibility for the child's support and maintenance is required to reimburse the State for the child's education in an amount equal to a statutorily defined school district basic contribution. The record does not reveal the circumstances under which the Suffolk County Department of Social Services assumed responsibility for the child. Upon the record before me, it is not possible to determine whether the child has in fact been placed in foster care, or whether petitioner has incurred an obligation to provide financial support for educationally related expenditures on behalf of the child made by the Suffolk County Department of Social Services.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the decision of the hearing officer is annulled to the extent that he failed to direct the CSE to classify the child as other health impaired and he upheld the recommendation of the CSE for the child's placement during the 1991-92 school year.